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Thursday, February 25, 2010

What role should crime victims play in plea bargains?

Prosecutors represent the state, not crime victims, and they're charged with seeking justice, not convictions. But the Houston Press published a feature questioning whether prosecutors should be required to notify crime victims or get their sign-off before entering into a plea deal. The Harris County DA's Office says "There is no obligation to give advance notice to all victims of plea bargains," a policy which has the Mayor's crime victim advocate Andy Kahan hopping mad.

There's a problematic conflation throughout the article of "victim's rights," which is a largely ephemeral, political idea, with legal rights of defendants accused by the state, which are enshrined in the US Constitution. The Press article is rife with examples of crime victims who say "their rights have been walked on," but those aren't legal rights, only theoretical ones the speakers think they should have. After all, as the Press notes, "The law does not provide victims any way to enforce their rights after they've been violated." And if you can't enforce a "right" when it's violated, then it isn't one - not in a legal sense, anyway.

The main example in the story probably isn't the best one for victim's rights advocates since it atypically involves a high-profile, politically connected defendant: Former US Congressman Craig Washington. His light plea deal (2 years probation) probably isn't what the average black man firing a gun at white youth could expect in Houston, regardless of the victim's wishes.

But I was interested to notice the main reason the victims say they're unhappy at Washington's plea deal: Not at the outcome but because they didn't get the chance to say their piece. The two boys who Craig Washington shot at "wanted to tell their side of the story to a jury, and made it clear to Harris County prosecutor Lynne Parsons that they didn't want to settle for a plea deal. If a jury let Washington off, so be it."

I find fascinating this overarching desire by the victims to tell their story to 12 people they do not know. Indeed, getting to tell their story, by their own account, was more important than any punishment Washington might receive. This powerful psychological need to formally, publicly speak about what happened reminds me of an analysis by restorative justice advocate Howard Zehr, which I described on Grits thusly after hearing him speak in 2007. According to Zehr:

Victims typically have many questions: Why me or why my family member? They often want to know the details of crimes, what else happened that they didn't know about, and most frequently, why the offender did what they did?

In general, said Zehr, victimization authors three crises: A crisis of identity, a crisis of relationships (who can I trust?), and crisis of meaning. Transcending these crises requires a "re-creation of meaning" of oneself and the world. They must reconfigure their lives, "re-story" their life - they must somehow create a new narrative of self.

Part of this process is encapsulating experiences of victimhood and making them part of your own story, drawing boundaries around them, trying to articulate new metaphors for self. People seldom have adequate words for this process, he said, so they use metaphors. A central part of truly restoring victims to wholeness is enabling them find new metaphors to transform their narrative of humiliation into stories of honor and vindication.

When someone wrongs us we need to be vindicated, Zehr said. Victims want to know what their own responsibility was for what happened, if any, but most importantly for offenders to take responsibility for what they did. We search for ways to replace humiliation with honor.

A particularly important insight was Zehr's observation that the failure to make victims whole contributes to future crimes, because frequently victims later victimize others. Victims become offenders when have no other outlets, he said.

To keep that from happening, victims need safety, answers, truth-telling from everyone involved (authorities as well as the offender), empowerment (which the system generally denies them) and most importantly vindication and a chance to "re-story" what happened to them in a way that lets them regain honor.

In many ways, said Zehr, the current criminal justice system denies victims almost everything they need. He quoted Judy Herman saying that if you set out to design a system to create post traumatic stress for a victim, you couldn't do better than a court of law. This theme was repeated in other conference events so far - that the court process places unfair demands on victims that exacerbate their emotional response to crime instead of help them.

Restorative justice models focus more on giving victims that opportunity to confront both their victimizer and and their own personal demons - to publicly have their say and "'re-story' what happened to them in a way that lets them regain honor." However those approaches have proven difficult to graft onto the traditional adversarial system, where there is no real avenue for victims to "reconcile differences" with offenders.

Especially without a trial (and 98% of felony cases end in plea bargains), the adversarial system seldom provides victims that much-desired opportunity to tell their story. Yet any practitioner will tell you that, without plea bargains, the entire system would collapse under its own weight. Ditto for making victims a straight-up party to plea bargains; indeed, most crime victims likely wouldn't want that responsibility.

A lot more work needs to be done to identify the best way for the legal system to satisfy these emotional needs of crime victims, and restorative justice theories may provide a good starting point for re-imagining the system. But the adversarial process as we know it probably can't accommodate those needs without taking every case to trial, which like it or not is a practical impossibility.

21 comments:

Andy Kahan's only emotional setting is "outrage." Kahan isn't remotely interested in justice, rationality or balance; for him, it's all about the vengeance. I genuinely believe their is no law, no punishment, no parole restriction that he considers too severe.

"Prosecutors represent the state, not crime victims, and they're charged with seeking justice, not convictions. But the Houston Press published a feature questioning whether prosecutors should be required to notify crime victims or get their sign-off before entering into a plea deal. The Harris County DA's Office says "There is no obligation to give advance notice to all victims of plea bargains," a policy which has the Mayor's crime victim advocate Andy Kahan hopping mad."

56.08 doesn't even remotely suggest that victims get to "sign off" on a plea agreement. It does, however, suggest that they are to be "notified" of what the state has chosen to do and what court settings are happening IF THEY FIRST REQUEST IT. They have a duty to ask for it, and then the only obligation is to inform, not consult.

If such "right" did exist, the American system of criminal justice would grind to a a stand still, and the majority of the people would not be served. Instead, they would suffer increased taxation, greater expenses by prosecutors, courts, and prison systems, and longer delays. This is particularly problematic when it comes to time, as the United States Constitution, not a Texas statute, guarantees a right to speedy trial. If we have to wait on victims to make a decision or agree to a plea, that right could be in trouble. I might also mention this concept of equal protection available to criminal defendants.

8:17 my comments were in reference to the comment made by the Harris County DA's office...."There is no obligation to give advance notice to all victims of plea bargains."

And yes he has an obligation as spelled out in 56.08 if the victim requests it. If you read 56.08 then you saw the state's attorney has to give written notice to the victim certain rights within 10 days of indictment of the defendant.

If he does not give the required written written notice, then the victim does not know they have a right to request it.

For twelve years I was a felony prosecutor in a state that has both a constitutional bill of rights and a statutory scheme to implement those rights. The right of a victim to notice regarding charging decisions, plea offers, etc..., did not give the victim the right to dictate what the prosecutor did, although it did give them the opportunity to vent. And vent they did. It may have helped them deal with the emotional damages resulting from being a victim of crime.

One area in which victim's should not receive any type of veto power over the actions of prosecutors is in domestic violence cases. Some victims internalize the abuse and see the offender as their protector who should not be prosecuted. Some victims want minor or evidentiarily weak violations prosecuted as major felonies with a lengthy prison sentence as the only acceptable outcome. Finally, others, faced with the prospect of having the breadwinner for their children sent away to prison, want the charges to just go away. None are satisfied with the ultimate resolution if you deal with these cases consistently, but giving them the right to yell at you or to tell the sentencing judge that you are an incompetent, heartless, lazy SOB may help them in the long run.

An excellent book on the subject, more philosophical than practical. is Thane Rosenbaum's "The Myth of Moral Justice." It prompts reflection if not agreement.

"The right of a victim to notice regarding charging decisions, plea offers, etc..., did not give the victim the right to dictate what the prosecutor did, although it did give them the opportunity to vent. And vent they did. It may have helped them deal with the emotional damages resulting from being a victim of crime."

Oh, those pesky victims. How dare they believe that the "justice" system is about THEM. How ridiculous! Everyone should understand that the "justice" system is about the STATE and its power over all things affecting the humans under its "authority".Let us all bow to the State, giving homage to its authority. To hell with the individuals for which it was created.

Instead of restitution, let us sentence criminals to the hell of incarceration and all it entails, including anal rape. After all, it is the magnificence of the State which must be worshiped, rather than making whole the victims as justice requires.

Instead of making victims whole, let us contribute to the apparent greatness of professional prosecutors so that they may make claims as to the protection of the collective. Let those prosecutors sacrifice to Molech the interests of the victims so that the collective may be satisfied. (and so that said prosecutors may have bragging rights as to their toughness during their next political race)

Rather than allowing criminals to redeem themselves through restitution, let them sink into the depravity of a system geared only to projecting the power of the State. Let said criminals be worked upon by the cottage industry of loony therapeutic pretenders which has sprung up like mushrooms to feed upon the compost of government money.

Texas has a Crime Victim's Bill of Rights that allows the victim to demand mediation. If they ask for it, the prosecutor has to set it up. But they never tell the victim, so how would they know? It's like the crime victim's fund, which is loaded with cash and makes almost no payments to victims because the prosecutors do little to make it happen.

Thank you, Jerri Lynn. NFL and NBA players have been doing this for years. Vindication is a few million to make it go away and the game goes on.For the rest of us the state takes charge and the parties involved are told to stay away from one another. That is wrong and mediation id a much needed tool. If the victim,especially in family matters. wants the opportunity yo face his or her offender, scream, call names and let it all this is the place to do it. The anger is released, the question of why is answered and the healing begins. This can be done face to face or through an attorney.If some little SOB down the road steals $500 from me I want him to have to look me in the eye and know I own him until I am repaid with interest. In domestic situations there is an opportunity to save families if anyone is interested.There is pitifully few of those left. Often the victim knows the triggers that cause a response and is partially responsible.The state is not the injured party. People would learn to solve personal matters in a legal way if this tool is available to those those who wish to use it. When the state gets the case takes the case most parties end up feeling short changed and angry at the system. Restitution is payment to the injured party. Restitution means taking responsibility for one's actions and working, paying taxes, supporting self and children plus any other related debt. An offender can actually pay for a crime w/o being locked up and being 100% dependent of the public. I didn't break the law and I don't like being punished for the upkeep of someone that did.

When the many (but not all) prosecutors choose to listen to the victim tends to be a convenient way to hit the defendant with a harsher sentence. When the victims in the cases I handle do not want to prosecute, they are routinely told that their wishes don't matter - that the State can and will prosecute with or without them on board. But when the prosecutor wants blood (sometimes even when they want a sentence the prosecutor knows is above and beyond what is warranted for the case) the prosecutor will say that they're handcuffed by the victim's wishes. The prosecutor's job is to seek justice. Justice doesn't equal vengeance for the victim or an eye for an eye, even if that's what the victim wants. Justice is seeing to it that the defendant gets an appropriate punishment (taking into account the needs of the victim, of the community, and the defendant, i.e. rehabilitation).

I can understand a victim wanting to have their say in open court, but a prosecutor's decision to try a case cannot be based solely on that fact. Again, the prosecutor represents the State (meaning the entire citizenry), not just the victim. There are other factors than just the victim's wishes. The simply system can not handle too many trials. The system is designed so that the vast majority of cases are handled via plea bargain.

Victims' rights is politics, pure and simple. Like so many other things, it's a concept that is more geared towards sounding good in a soundbite format (a la politics) rather than being thought out for its implications on the criminal justice system.

Art. 42.03. PRONOUNCING SENTENCE; TIME; CREDIT FOR TIMESPENT IN JAIL BETWEEN ARREST AND SENTENCE OR PENDING APPEAL.Sec. 1.(b) The court shall permit a victim, close relative of adeceased victim, or guardian of a victim, as defined by Article56.01 of this code, to appear in person to present to the court andto the defendant a statement of the person ’s views about theoffense, the defendant, and the effect of the offense on the victim.The victim, relative, or guardian may not direct questions to thedefendant while making the statement. The court reporter may nottranscribe the statement. The statement must be made:(1) after punishment has been assessed and the court hasdetermined whether or not to grant community supervision in the10case;(2) after the court has announced the terms and conditions ofthe sentence; and(3) after sentence is pronounced.

Victims in Texas do have standing to enforce rights violations NOW. See Article I Sec. 30 (e). Texas is one of a few states that allow victims standing to enforce their rights. What is not clear is how they do that. Victims can file a writ of mandamus too. Victims' Rights Compliance and Enforcement are emerging issues. The feds and several states now have ombudsman programs that receive and attempt to resolve victims' rights complaints and violations. Crime Victims First www.HelpCV1.org is a new nonprofit ombudsman in Texas and is trying to improve compliance and enforcement.

9:58, I'm afraid that doesn't really resolve the complaints in the story. The statute you reference allows victims to make a statement after punishment has been assessed. That means after they've cut the plea deal, by which time (according to the article) victims feel snookered and figure "what's the point?" since their commentary can't affect the outcome.

Retired LE, they must give advance notice of HEARINGS, if requested, but plea bargains are negotiations that take place in private and there is no obligation in the statute for prosecutors to inform victims (or anyone else) when they're happening. In general, the plea bargain process is incredibly secretive and isn't done in open court. The Harris DA did notify the victims who requested it of the hearing where the plea would be accepted (albeit sometimes at the last minute, according to the article), but the complainants were mad because the outcome was a fait accompli.

Hey Grits, Thanks for asking. It appears that we have some good answer(s). I encourage all true crime victims to let the courts, the public, and elected officials know that they are 100% against plea-bargaining. Let the courts and juries do the job or take them totally out of the loop & hold court in the police stations.

Just curious, if 95% to 98% are pleading out, what percentage of juries are dismissed at lunch recess on the first day at $6.00 per juror, per day? How much is spent on voir dire procedures that end in juries being excused? Thanks.

Mediation should be there for those that want to try it. If a victim demands that the offender have his head on a spike it is obvious that the 2 sides didn't reach an agreement and mediation failed. In many instances an agreement can be reached that both sides will be willing to sign and have presented to the Judge. Without a signature from both sides there is no agreement and then it goes back to the DA.

Three years ago, my son murdered my daughter. In what I hope was 10 minutes, I became childless, the mother of a victim, the mother of a juvenile murderer, and a victim myself. I have had to fight to be heard every step of the way as all of them. As the mother of the both, I would have liked both sides, defense (which I hired) and DA, to keep me more informed of what was happening with my child's case and my child's memory. It is a good thing I am loud because I took the initiative to make myself heard, from day one until present moment. In my opinion, we victims should not have the "right" to decide what is or is not the "right" amount of time to give a defendant. We are too emotional and our emotions swing all over the board-some of us feel revenge is the only way to go and some of us feel love and compassion is the way to go. The law is supposed to be based on fact and fairness, not emotion, for a reason. Justice is supposed to be blind in order to be fair right?

All I ever wanted was to know when hearing were to be held, what was needed or required of me, would my son be there for me to hug...

I actually was told, by the DA, that my son's attorney had requested a deal of 15 years for capital felony murder. The DA was inclined to refuse and asked my opinion.

I was so out of it at the time I still cannot even remember what I may have told them. After three years of dealing with it though, I still believe we should have a voice and allowed more active involvement. If a couple who has been robbed by a kid is happier with him going to drug rehab rather than jail, is justice still not served along with morality, human decency, and kindness?

Using RJ, in my opinion, works great with misdemeanors, drug cases, etc....I have yet to see how it can be applied to felony cases but, as a mom, I'm all for trying.

Andy Kahan” hopping mad or outraged about “crime” They call that news? Andy and his good comrades Dudley and Charlene have not met a “crime” they do not have a love hate relationship with . If the comrades in the battle against our rights had their way every “criminal offense” would be punishable by death to hell with due process and the rights of the accused . It is all the fault of those pesky rights we all enjoy just get in the way of revenge .

Why are they not mad about a certain former TDCJ Parole Division employee using TDCJ funds as their own little slush fund? A certain official in Huston sexual misconduct which got him a “strong reprimand about it not being acceptable” The same things that routinely get many people in a nice comfy TDCJ unit . Maybe this needs some looking into

Why are these misnamed””victims rights groups not so supportive of families who do not want the death penalty ? The services by law hey are entitled too ?

Victims or their survivors should never be part of the prosecution. This can get real messy especially if they are also a witness. Why not admit that many victims rights groups are not at all concerned about victims but a fascist political agenda . They would turn our courts into revenge system and she what semblance of fairness in neutrality there is left of it .

Ending plea bargaining in principle ending is a very good idea. If we did it would literally bring our justice system to a halt in less than a day . With the thousands of felonies and misdemeanors to choose from and be charged with it is impossible not to commit one . All of us probably do at least once a week with out knowing it !

I like the idea of restorative justice . If someone steals from me they should re pay it one way or antihero . And my time spent in dealing with it . A injury pay for my medical expenses and any time lost from any form of employment . There are many ways to inexpensively to do this and also appropriately and humanely punish the person with put incarcerating them . This might lower the crime rate .Something Andy and his comrades do not want .

Our Justice system would become a revenge system to hell with due process and the rights afforded all of us by the US Constitution . if the misnamed “victims rights” a activists had their way . It is immoral to

Then we could legalize and reasonably regulated drugs just as we do with alcohol and tobacco which are more harmful and cause more problems than all illegal drugs combined as well as all prescription. drugs abused added in .

Their is a whole economic argument about this too very interesting reading .

There are 27 amendments to the Constitution not just the second and tenth and the tenth is not what some say it is . Try reading the whole Constitution not select sections. No the Federalist Papers are not a legal document .

This sounds like the reason Defense-Initiated Victim Outreach was created. Ultimately, the party in the best position to see that the victim's needs ("rights" isn't the right word, but "desires" isn't, either) are met is the defense. The UT School of Social Work has done a lot of pioneering work on DIVO, and it really seems like it might be the only way to address the victim's needs and to allow for them to be met early enough in the process that they feel heard.

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